In the High Court of South Africa Kwazulu-Natal Division, Pietermaritzburg

IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL DIVISION, PIETERMARITZBURG CASE NO: 7904/2016 P In the matter between: LAWRENCE DUBE First Applicant SIBAHLE ZIKALALA Second Applicant MARTIN SIFISO MZANGWA Third Applicant MZWEBI REMIGIUS NGCOBO Fourth Applicant LINDIWE NOMALUNGELO BUTHELEZI Fifth Applicant and SIHLE ZIKALALA First Respondent WILLIES MCHUNU Second Respondent SUPER ZUMA Third Respondent MLULEKI NDOBE Fourth Respondent NOMUSA DUBE-NCUBE Fifth Respondent MXOLISI KAUNDA Sixth Respondent BONGI SITHOLE-MOLOI Seventh Respondent LYDIA JOHNSON Eighth Respondent WEZIWE VIRGINIA THUSI Ninth Respondent ARTHUR ZWANE Tenth Respondent ESTHER QWABE Eleventh Respondent 2 MKHAWULENI KHUMALO Twelfth Respondent SDUDUZO GUMEDE Thirteenth Respondent MAKHOSI ZUNGU Fourteenth Respondent MAKHONI NTULI Fifteenth Respondent ZANELE NYAWO Sixteenth Respondent KHULEKANI HADEBE Seventeenth Respondent LINDIWE MJOBO Eighteenth Respondent SPHINDILE ZONDI Nineteenth Respondent JABU KHUMALO Twentieth Respondent FIKILE KHUMALO Twenty-First Respondent MERVIN DIRKS Twenty-Second Respondent SIPHUMILE ZUU Twenty-Third Respondent SOLOMON MKHOMBO Twenty-Fourth Respondent MAGGIE GOVENDER Twenty-Fifth Respondent BHEKI MTOLO Twenty-Sixth Respondent VINCENT MADLALA Twenty-Seventh Respondent NOMAGUGU SIMELANE-ZULU Twenty-Eighth Respondent NONTEMBEKO BOYCE Twenty-Ninth Respondent MDUMISENI NTULI Thirtieth Respondent BHEKI SIBIYA Thirty-First Respondent CELIWE MADLOPHA Thirty-Second Respondent DUDU MAZIBUKO Thirty-Third Respondent SIPHO GCABASHE Thirty-Fourth Respondent RAVI PILLAY Thirty-Fifth Respondent MESHACK HADEBE Thirty-Sixth Respondent 3 PROVINCIAL EXECUTIVE COMMITTEE Thirty-Seventh Respondent AFRICAN NATIONAL CONGRESS-KZN THE AFRICAN NATIONAL CONGRESS Thirty-Eighth Respondent THE ELECTORAL INSTITUTE OF Thirty-Ninth Respondent SOUTHERN AFRICA ___________________________________________________________________ Coram: Koen J (Balton et Chetty JJ concurring) Heard: 16 and 17 August 2017 Delivered: 12 September 2017 ___________________________________________________________________ O R D E R 1. The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg from 6 to 8 November 2015 and decisions taken at that conference are declared unlawful and invalid. 2. The Thirty-Eighth Respondent is directed to pay one half of the Applicants’ costs of the application, such costs to include the costs of two counsel. J U D G M E N T ___________________________________________________________________ KOEN J INTRODUCTION: [1] The eighth provincial elective conference (‘PC’) of the African National Congress (‘ANC’) for the Province of KwaZulu-Natal (‘KZN’) was held from 6 to 8 November 2015. Its propriety is the subject of dispute in this application. 4 [2] The First, Second, Fourth and Fifth Applicants1 (‘the Applicants’), all members of the ANC, in their Notice of Motion seek the following order: ‘(a) That the 8th KwaZulu-Natal Provincial Elective Conference of the African National Conference held at Pietermaritzburg on 6 to 8 November 2015 and its decisions, resolutions and elections are declared unlawful and invalid and, as such, are set aside;2 (b) Declaring that the recognition, approval and/or endorsement by the ANC (the Thirty-Ninth Respondent)3 of the aforesaid Provincial Elective Conference, its decisions, resolutions and elections, are likewise declared unlawful, invalid and of no force or effect’;4 (c) That’s (sic) the costs of the application are to be paid by the Thirty Eighth Respondent, the ANC, jointly and severally with any other party unsuccessfully opposing it, including the costs of two counsel.’5 [3] In Ramakatsa and Others v Magashule and Others6 (‘Ramakatsa’), the Constitutional Court in regard to a similar attack on the propriety of the Free State provincial conference of the ANC held from 21 to 24 June 2012, said the following in regard to the relief claimed: ‘[124] In our view, a declaration that the provincial elective conference of ANC and the decisions taken at the conference are unlawful and void should suffice. We emphasise that the declaration of invalidity applies only to the Provincial Conference. The declaratory order we make does not relate to or affect the rights of delegates who have been elected at properly constituted branch general meetings of the Free State province to serve as delegates at any other conference of the party.’ [4] No doubt influenced and guided by similar considerations, by the time this application came to be argued, the relief sought by the Applicants in the alternative 1 Initially there were five Applicants but the Third Applicant subsequently withdrew from the application and the judgment accordingly only deals with the remaining four applicants. 2 Paragraph (a) of the Notice of Motion. 3 The reference is an error as the ANC is the Thirty-Eighth Respondent. 4 Paragraph (b) of the Notice of Motion. 5 Paragraph (c) of the Notice of Motion. 6 2013 (2) BCLR 202 (CC) ([2012] ZACC 31). 5 to that originally sought in the Notice of Motion, as in Ramakatsa, was confined to an order that: ‘The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg on 6 to 8 November 2015 and its decisions and resolutions are declared unlawful and invalid.’ [5] The basis for seeking the aforesaid relief, whether as initially couched or confined to the alternative, in broad terms is: (a) That the holding of the PC was unlawful as, contrary to the requirements of rule 17.2.1 of the ANC constitution, it had not been requested by at least one third of all branches in the province of KZN; and/or (b) That the PC was affected by various material irregularities which occurred during the pre-conference period and/or at the conference itself relating to the auditing of branch membership, branches being allowed inadequate time for remedying any errors found, insufficient time being allowed for appeals against findings of the auditing committee, discrepancies in the accreditation of delegates, and the manipulation of the voting results at the conference. There are various material factual disputes arising in respect of the irregularities alleged by the Applicants referred to in sub-paragraph (b) above. Confronted with that reality, the Applicants have nevertheless elected to argue the application on the papers, accepting that material factual disputes must be resolved in favour of the Respondents in accordance with the test espoused in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.7 This judgment proceeds on that basis. BACKGROUND: [6] The seventh provincial conference (‘seventh PC’) of the ANC in KZN was held from 11 to 13 May 2012. 7 1984 (3) SA 623 (A) at 634G-653C. See also Ramakatsa para 94. 6 [7] At the beginning of March 2015, the KZN Provincial Executive Committee (‘PEC’) proposed to commence preparations for a conference to be held from 25 to 27 September 2015, which the National Executive Committee (‘NEC’) refused. In August 2015, the PEC re-approached the NEC for permission to hold the PC on 6 to 8 November 2015. Such permission was granted by the NEC at its meeting of 18 to 20 September 2015. [8] A document entitled ‘WHAT CONSTITUTES A LEGITIMATE ANC CONFERENCE’ relied on by the Applicants8 stresses the need to understand the fundamental processes and procedures that constitute a conference. It inter alia provides in one part as follows: ‘Tabulated hereunder are certain procedural challenges that might be encountered along the way when attempting to host a successful Conference. It is recommended that if the following primary principles are adhered to then such challenges may be averted.’ (My emphasis) In respect of the category of ‘MEMBERSHIP’, a sub-category of ‘Members in good standing but not captured on membership roll’ recommends, as a primary principle, that ‘Branches should be given the membership roll two weeks before the BGM date to ensure that all members have been correctly captured.’ [9] The terms of that document are not dissimilar to a similarly titled annexure introduced by the Respondents in the answering affidavit9 as to what they contend constitutes a legitimate ANC conference, save that their document is more extensive in its terms and in places couches requirements in more peremptory terms. As the Respondents’ version is the one to prevail in the case of any material conflict, it is the contents of that document which is reproduced more fully below. It provides: ‘KEY ELEMENTS CONSTITUTING THE CONFERENCE 8 This was put up as annexure ‘LD5’ to the founding affidavit. 9 Annexure ‘SZ5’. 7 PRE CONFERENCE PROCESSES The ANC Conference is an outcome of logical steps in a process seeking to ensure organizational readiness, maintenance of legitimacy and integrity of such process. Such preconference processes have to meet the time lines set for each of the following steps. Verification of Membership: This checks the status of members in branches to ascertain if a member qualifies to be a member or to participate in the processes of the conference. Status of Branches: Membership and term of office of the BEC determines if the branch qualifies both to be a branch and therefore participate in the processes of the conference. Corrections: Branch is allowed to effect corrections and to change to improve its status. Allocation of Delegates: Delegates are allocated proportionally in terms of membership. Convening of BGM’s10 & BBGM’s: Convened within the time line set by higher structures. Verifications of Constitutionality

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